A personal injury claim arises when you suffer injuries and someone else is at fault. To recover compensation from the at-fault person, the evidence must establish the legal requirements for showing the other person’s fault or negligence. Your own contributory negligence also may be a factor under the Kansas comparative negligence rule.
Negligence is a legal standard. In effect, it means that the other person failed to exercise the legally required amount of care to avoid causing your injuries. In a personal injury case, the facts and circumstances of the accident demonstrate the negligence of the at-fault individual.
Another factor in determining your compensation as the victim in a personal injury case is the extent of your own contributory negligence. If there is evidence that your actions partially caused your own injuries, your conduct may constitute contributory negligence, which may affect the amount of compensation you can recover.
In addition, if you receive injuries in an auto accident, Kansas no-fault insurance laws apply to your case. To be able to bring a personal injury claim, your case must meet specific requirements, as explained in our recent blog post, When Can You File a Lawsuit for a Kansas Auto Accident Injury?
Individual states determine how contributory negligence affects personal injury compensation. Some states have a harsh pure contributory negligence rule, under which any contributory negligence at all completely bars a personal injury claim. Kansas is not one of those states.
The State of Kansas has a rule that falls into a category called comparative negligence. Under this standard, the at-fault person’s negligence and the victim’s contributory negligence are weighed relative to each other. A percentage of fault is assigned to the at-fault person and the injured victim. That same percentage is applied in determining the amount of compensation for the victim.
The Kansas rule is a modified comparative negligence rule. The standard is set forth in KS Stat § 60-258a, which reads:
Comparative negligence. (a) Effect of contributory negligence. The contributory negligence of a party in a civil action does not bar that party or its legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if that party's negligence was less than the causal negligence of the party or parties against whom a claim is made, but the award of damages to that party must be reduced in proportion to the amount of negligence attributed to that party. If a party claims damages for a decedent's wrongful death, the negligence of the decedent, if any, must be imputed to that party.
In other words, in Kansas, contributory negligence of an injured victim does not prevent recovery of compensation, as long as the victim’s negligence was less than the at-fault person’s negligence. In practical terms, that means the victim’s own negligence can only be at most 49% of the cause of the injuries. If the victim’s contributory negligence is 50% or more, there is no recovery for a personal injury claim.
If a personal injury case goes to trial, the Kansas statute requires the jury or judge to make specific findings relating to the percentage of negligence of each party, and the total damages for each victim. The statutory section, KS Stat § 60-258b, states:
(b) Special verdicts or findings required. When the comparative negligence of the parties is an issue, the jury must return special verdicts, or in the absence of a jury, the court must make special findings, determining the percentage of negligence attributable to each party and the total amount of damages sustained by each claimant. The court must determine the appropriate judgment.
Most personal injury cases do not end up going to trial. Many conclude with a settlement reached by the attorneys for the parties. In that situation, the lawyers discuss apportionment of negligence during the settlement negotiations. The amount of the settlement amount then reflects an agreement about the extent of the victim’s own contributory negligence.
In any situation where you receive serious injuries that may be another person’s fault, the first thing you should do after getting all necessary medical attention is talk with an experienced personal injury attorney. That is true regardless of whether you think contributory negligence is an issue.
You also should not talk to the at-fault person’s insurance company or adjuster before you consult an attorney. The insurance company’s only goal is to pay you as little as possible. They will attempt to get you to admit your own contributing fault, to establish contributory negligence.
Making statements to the insurance company can harm your personal injury claim. If the insurance company can establish through your own statements (or other evidence) that you are 50% or more at fault, you will recover nothing.
While it is important that you understand contributory negligence and the Kansas comparative negligence rule if you suffer injuries in an accident, you should rely on your attorney to evaluate those issues and factor them into your case. It is not a good idea to try to reach conclusions about those factors prematurely without the help of an experienced personal injury lawyer.
At the Salina, Kansas law firm Hampton & Royce, L.C., we assist clients throughout the state with personal injury matters, including car and truck accidents. Contact us to schedule a consultation to discuss your case with us.